Menzies and Child Support Registrar (Child support)

[2018] AATA 1715

Menzies and Child Support Registrar (Child support) [2018] AATA 1715 (5 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013549

APPLICANT:  Mr Menzies

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  5 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support – Refusal to grant an extension of time to object to a departure decision – Rested on rights – Long delay in lodging objection – Prospect of success is limited - Extension not granted – Decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This decision concerns whether an extension of time should be granted to allow Mr  Menzies to lodge an objection to a decision made by the Department of Human Services – Child Support (the Department).

2. Mr Menzies and [Mrs A] and are the parents of [Child 1], born March 2000. Since June 2003 there has been a child support assessment made by the Department in respect of [Child 1].

3. On 7 April 2015 a decision was made by the Department to depart from the child support assessment and to vary Mr Menzies’ adjusted taxable income to $61,152 per annum to be increased by 10% each year from 1 January 2016 until a terminating event occurs. Neither parent lodged an objection to that decision.

4. On 25 March 2017 Mr Menzies lodged an application to depart from the assessment. On 12 June 2017 Mr Menzies’ application was refused. Notice of that decision was sent to Mr Menzies with a covering letter dated 16 June 2017.

5. The Department received Mr Menzies’ objection to the decision of 12 June 2017 on 2 December 2017. He also sought an extension of time in which to lodge the objection. His application for an extension of time was refused by the Department on 9 February 2018.

6. Mr Menzies lodged an application with this Tribunal on 21 February 2018 seeking a review of the decision to refuse his application for an extension of time. The application was heard by the Tribunal on 5 April 2018. Mr Menzies participated in the hearing by telephone.

7. In addition to oral evidence given by Mr Menzies, the Tribunal had regard to the documents supplied by the Department (folios 1 to 307).

ISSUE

1. The issues to be decided by the Tribunal are whether Mr Menzies’ objection was lodged outside the statutory time frame and if so whether he should be granted an extension of time to object to the decision made on 12 June 2017.

CONSIDERATION

1. Subsection 80(1) of the Child Support (Registration and Collection) Act 1988 (the Act) provides that a party to a child support assessment can lodge an objection in writing to a decision made to depart or to refuse to depart from the assessment.

2. Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

3. Notice of the decision was mailed to Mr Menzies on 16 June 2017. Allowing for delivery, the Tribunal considers Mr Menzies’ objection was received more than four months outside of the 28 day limit.

4. Where the period for lodgement has ended, the person may send the objection to the Department along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act then provides that the Department must consider the application for an extension of time, grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this Tribunal for a review of that decision.

5. The Tribunal considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

6. A consideration of other relevant authorities establishes that when considering whether to allow an extension of time the Tribunal should consider and balance a range of factors. These factors are a guide and are not exhaustive, but generally include:

   ·     the reasons for the delay and whether the applicant rested on their rights;

   ·     the merits of the substantive application;

   ·     any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·     wider prejudice to the general public;

   ·     fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·     whether it is proper to grant the extension of time.

The reasons for the delay and whether Mr Menzies rested on his rights

1. The letter of 16 June 2017 notifying Mr Menzies of the decision clearly states that he could make an objection to the Department about the decision “within 28 days from the date you receive this letter”.

2. Mr Menzies stated he was confused about his review rights as he had applied for Centrelink assistance and was also contesting its decision. Tribunal records show Mr Menzies applied to this Tribunal on 4 August 2017 for a review of a decision regarding the start date of a Centrelink payment. That matter was decided by the Tribunal on 11 September 2017. The Tribunal accepts Mr Menzies’ evidence that he was confused by the review process; however, his application for review by this Tribunal on 4 August 2017 was for an entirely unrelated decision made by Centrelink.

3. On 19 September 2017 Mr Menzies applied to this Tribunal for a review of the decision made on 12 June 2017. He was notified on 12 October 2017 that the decision was not reviewable by this Tribunal as it had not been reviewed by an objections officer.

4. While the Tribunal is satisfied that Mr Menzies attempted to contest the decision of 12 June 2017 on 19 September 2017, he was already outside of the statutory time frame to request a review by objections officer.

5. Even after being notified on 12 October 2017 that the decision was not reviewable by this Tribunal, Mr Menzies did not contact the Department until 13 November 2017 to lodge an objection at which time he was informed of the need to lodge an extension of time to object which was subsequently lodged on 2 December 2017.

6. A medical certificate dated March 2017 certifies that Mr Menzies is diagnosed with whiplash injury and degenerative cervical spine. Mr Menzies advised he is prescribed Nurofen and Panadeine Forte.  Mr Menzies stated the medication slows him down and narrows his vision but acknowledged he was capable of contacting the Department to object to the decision.

7. The delay in lodging an objection is substantial and not explained by Mr Menzies’ confusion over his right of review or the effects of his medication. The Tribunal finds that Mr Menzies rested on his rights.

The merits of Mr Menzies’ objection

1. It appears from the papers and Mr Menzies’ oral evidence that the assessment for [Child 1] ended when she turned 18 in March 2018.

2. Mr Menzies submitted that when the decision was made in April 2015 to vary his adjusted taxable income to $61,152 he was self-employed and since then his circumstances have changed significantly. Mr Menzies was involved in a motor vehicle accident in August 2015. He advised that he had one apprentice at the time of his accident who continued working for him until December 2016 at which time he closed the business. He stated the business operated at a loss in 2016/17.

3. A profit and loss shows total wages of $123,353 paid in 2015/16 and travelling expenses of $10,374. Mr Menzies states he has not had income from the business since December 2016 and the company return for 2016/17 shows total income of $54,810.

4. In the 2016/17 financial year Mr Menzies received PAYG income of $17,222 from his company. In January 2017 Mr Menzies received an inheritance of approximately $43,000 from his father’s estate.  While the PAYG payments are not ongoing and the inheritance is one-off, the Tribunal is mindful that the child support assessment ended in March 2018. The Department examined Mr Menzies’ bank transactions and noted that he received deposits of $10,977 between 6 September 2017 and 6 December 2017 in addition to his Centrelink payments. It calculated that Mr Menzies had access to income and financial resources of approximately $80,000 over 12 months

5. When he is in Australia Mr Menzies lives with his mother. He has a partner in Thailand who has two children. He sends $1,000 per month to his partner to support her and her children. His partner was formerly employed as an accountant, but ceased work and is living with her parents. Mr Menzies advised his partner cannot work as she needs to care for him when he goes to Thailand. There is no evidence that Mr Menzies’ partner is unable to support herself or her children or that Mr Menzies has a legal duty to support them. 

6. There is a possibility Mr Menzies’ objection has some merit given he is now in receipt of Centrelink assistance; however, this is not conclusive  given the evidence regarding Mr Menzies’ income and financial resources, and evidence that Mr Menzies frequently travels to Thailand and provides financial support of $1,000 per month to his partner.

Prejudice to [Mrs A] and the wider public

1. [Mrs A] provided a detailed response in May 2017 to Mr Menzies’ departure application. The Tribunal does not consider that [Mrs A] would have difficulty responding to Mr Menzies’ application.

2. If Mr Menzies is granted an extension of time in which to lodge his objection there is a possibility that [Mrs A] may be prejudiced as, if Mr Menzies’ objection is successful, the arrears of child support ($12,557 as at March 2018) may decrease.

3. There is no evidence of any prejudice to the wider public if Mr Menzies was to be granted an extension of time.

Fairness to others in a similar position

1. The Tribunal considers that it would not be proper to grant Mr Menzies an extension of time in which to lodge his objection as others in similar positions are required to lodge objections within time.

Whether it would be proper to grant an extension of time

1. The Tribunal has found that Mr Menzies did not have adequate reasons for his delay in lodging an objection to the decision of 12 June 2017. He prioritised other matters and rested on his rights. Additionally any prospect of success may be limited. Those factors weigh towards the Tribunal exercising its discretion not to grant Mr Menzies an extension of time to object.

DECISION

The decision under review is affirmed.